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The Law of Nature in State and Fed- Eral Judicial Decisions

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The Law of Nature in State and Fed- Eral Judicial Decisions THE LAW OF NATURE IN STATE AND FED- ERAL JUDICIAL DECISIONS The notion that there is a law higher and better and more in accord with justice than positive law we are told has paralleled the existence of the law itself.' An appeal to reason or to the sense of mankind as to what is just and right and the insistence upon what ought to be law as binding because of its intrinsic reasonableness, are declared to be among the strongest liberalizing forces in legal history.2 This appeal to reason which commonly goes under the designation-the law of nature or law of reason- has had an eventful history since the formulation of the notion by the Greeks and the Romans. Natural law, a law to which legislation may or may not con- form, is a conception which is constantly taking new form. It may be described as the recurrence in the evolution of justice of ideas of right in accordance with reason, ideas which are fre- quently regarded as superior to positive law. The concept is one which is often held to belong more properly to ethics, to philosophy or to politics; but current usage, particularly in 3 continental European countries, terms it law. 1 Berolzheimer, The World's Legal Philosophies (Trans. by Rachel Szold Jastrow), Int., p. XII. "It is an ancient, never-ending dream of mankind that there is a peculiar, rigid and unchangeable law. This law is thought to be a law of reason. What is agreeable to the reason is supposed on. that account to be law, and necessary for all times and places." Windscheid, Rectoral Address, p. 7, quoted in Gareis, Introduc- tion to the Science of Law (Trans. by A. Kocourek), p. I9. See also Del Vecchio, Formal Bases of Law (Trans. by John Lisle), pp. 324-335 on "Natural Law as the Goal of Historical Development." Pound, Scope and Purpose of Sociological Jurisprudence, 24 Harvard Law Review, 6o8. 'Ahrens, Cours de droit naturel ou de philosophe du droit, gives a brief survey of the growth of the natural law concept. Natural law or the philosophy of law is defined as "the science which presents the first principles of right discovered by reason and founded in the nature of man." 8th ed., p. 1. Consult also Bergbohm, Jurisprudenz und Rechts- philosophie, Vol. I, Part I, "Das Naturrecht der Gegenwart"; Jellinek, Allegemeine Staatslehre, pp. 314-323; Stammler, Wirthschaft und Recht, pp. I69-I88 (the latter denies the existence of natural law); Charmont, La renaissance du droit naturel. YALE LAW JOURNAL That there is "besides the reason which guides us in fixing the letter of the law, a larger reason which informs the spirit of the law" and which is in last resort the ultimate justification for the law itself is a pervasive principle the significance of which has not at times been fully appreciated. Natural law, defined by Grotius, "right reason as it guides men in the ultimate determina- tion of right and wrong," is today as it has been in the past one of the important concepts in the realms of law, government and ethics. In the judicial decisions of the United States are to be found some notable applications of this concept, a survey of which is the purpose of this article. To understand and to better appreciate the modem use of the doctrine it is necessary to give a short account of the significant steps in the development of this far-reaching legal principle. The Law of Nature in Ancient and Mediaeval Times. The historical setting of the law of nature cannot be presented within the compass of a brief article. Moreover, the subject has been adequately treated in recent legal literature- and for the present purpose a brief summary of some significant historical facts will suffice. The idea of a law of nature-permanent and universal on which law is based-was familiar to the Greeks, particularly Aristotle and Demosthenes. The Greek concept developed under Stoic influence into the guiding principle of reason which was held to be immanent in the universe and of which natural law was an expression. Among the philosophers Cicero was the great advocate of the Stoic philosophy of natural law. But of greater importance is the .fact that the idea gained acceptance and received the approval of the jurists Paul and Gaius, and through them it was embodied among the principles of the great Corpus Juris.6 This law was regarded as the substance of the precepts 4Salmond, The Law of Nature, ii Law Q. Rev. 121; Pollock, Expan- sion of the Common Law, and Journal of the Society of Comparative Legislation, Vol. II, i9oo; Bryce, Studies in History and Jurisprudence, Vol. II, Essay, The Law of Nature. See also references on preceding page. Salmond, op. cit., pp. 123, ff. Cf. Rhet. I, Io and 13, wherein Aristotle refers to law that is universal "which is conformable merely to dictates of nature"; cf. Ahrens, Philosophie du droit dans l'antiquit6, p. 296. 'Wardship is characterized by Gaius as an institution based on natural reason and a similar basis for leases is suggested by Paul. Cf. Gains I, i89. Inst. i, 2o, 6. Phrases referring to the law of nature and of reason in Roman Law are: THE LAW OF NATURE approved by "the common sense of all nations as embodying what '7 was practically useful and convenient." In the Middle Ages the law of nature and of reason which held such an important place in the Stoic philosophy of the later Roman Empire was gradually absorbed by the church and was eventually given definite and specific application in the canon law courts. To secure additional sanction from Aristotle, Cicero and Justinian for the civil jurisdiction of the clergy, it became advan- tageous to identify the law of nature with the law of God and to apply the principle in the application of law to concrete cases. Natural law came to be regarded as law in its fullest sense; it possessed the same imperative elements as legislative enactments.' The law of nature came to be differentiated from ordinary stat- utes. All sovereigns were subject to this natural law which set limitations "to the exercise of every kind of human authority and the enactment of all positive law."9 In the hands of Grotius and his successors the law of nature took the form of a rather well-defined code relative to such mat- ters as reverence for God, family virtues, love of country, and the rights of liberty and property. Natural law in its pure form was to Grotius equivalent to the dictates of right reason, and as such, absolutely immutable, subject to change not even by God ius commune omnium hominum-Gaius Inst. I, i; Dif. i. 1, 9. ius quod naturalis ratio constituit-Gaius Inst. i, i; also the famous phrase-aequum et bonum, aequitas; cited among others in the essay by Bryce, op. cit., p. 578. TBryce, Essay on The Law of Nature, p. 578; Pollock, The History of the Law of Nature, Journal of the Society of Comparative Legislation, Vol. II, 19oo; Salmond, pp. 128, ff. Gareis, Introduction to the Science of Law, p. 18. Cf. my volume, The American Doctrine of Judicial Supremacy, pp. i8, ff. and 289. A portion of the historical part of this article follows with certain modifications the account given in the above volume. 8Dunning, Political Theories, Ancient and Mediaeval, p. 211; Bryce, P. 597; Pound, Common Law and Legislation, 21 Harvard Law Review, 39o; an able advocate of the "lex naturalis" was Thomas Aquinas, see Berolzheimer, op. cit., p. 98; "A civil statute that contravenes natural justice," affirms the mediaeval jurist Suarez, "is ipso facto void, for in the hierarchy of the laws the precepts of nature are higher both in source and in effect than those of any merely human power," Suarez, III, xii, 4; also Salmond, 131, ff. "Dunning, Political Theories, Ancient and Mediaeval, p. 281; Ahrens, Sec. 41, p. 308. YALE LAW JOURNAL himself.' 0 The law of nature by its very definition was a rule of life discoverable by human reason apart from any special revela- tion or the decision of any particular authority. Often it was 11 equivalent to "a pretty frank appeal to expediency." Law of Nature in English Law. At an early day in England the law merchant was declared to be "a part of the law of nature and nations" and as such universal, and the king's judges in the absence of other authority were accorded the privilege of a "resort to the law of nature which is the ground of all laws. 1 2 Following the mediaeval practice it was announced in 1563 that the law of nature rendered any custom or statute in conflict therewith void. In the seventeenth century the Court of King's Bench held that the law of nature was implied in "the law of the land" as used in Magna Charta. 3 With the advent of the dogma of a presocial state of nature and the possession by the individual of natural rights of superior sanctity, the conception of a law of nature acquired a new meaning. Locke, the apologist for revo- lution in England, declared the law of nature to be "a deter- mining body of rules for the conduct of men in their natural condition," embodying such fundamental matters as the right to life, liberty and property.'4 The law of nature was regarded as an outgrowth of a state of nature which Locke used as a postulate and which Rousseau rendered a popular concept of the eighteenth century political philosophy.'15 "Ibid., p.
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